MISSOURI COALITION FOR THE ENVIRONMENT, ET AL., PETITIONERS V.
CORPS OF ENGINEERS OF THE UNITED STATES ARMY, ET AL.
No. 88-2044
In the Supreme Court of the United States
October Term, 1989
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit
Brief for the Federal Respondents in Opposition
TABLE OF CONTENTS
Opiniions below
Jurisdiction
Question Presented
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-17a) is reported
at 866 F.2d 1025. The opinion of the district court (Pet. App.
18a-45a) is reported at 678 F. Supp. 790.
JURISDICTION
The opinion of the court of appeals was filed on January 27, 1989.
A petition for rehearing was denied on March 17, 1989 (Pet. App. 82a).
The petition for a writ of certiorari was filed on June 14, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the Army Corps of Engineers acted arbitrarily or
capriciously by not preparing an Environmental Impact Statement in
connection with its decision not to revoke a permit authorizing the
filling of wetlands in St. Louis County, Missouri.
STATEMENT
1. Section 404 of the Federal Water Pollution Control Act, 33
U.S.C. 1344 (1982 and Supp. V 1987), authorizes the Corps of Engineers
to issue permits for the discharge of dredged or fill material into
the wetlands and the navigable waters of the United States. The
Corps' regulations for evaluating permit applications are published at
33 C.F.R. 320.4. Those regulations require the Corps to assess "the
public interest" by balancing favorable effects against any
detrimental effects. 33 C.F.R. 320.4(a). Such a "public interest
review" (ibid.) takes into consideration a number of factors,
including environmental concerns and flood hazards. The Corps also
has regulations concerning the modification, suspension, or revocation
of Section 404 permits. See 33 C.F.R. 325.7. Those regulations
authorize the Corps' district engineer to conduct informal proceedings
(Pet. App. 26a) concerning whether an existing permit should be
modified, suspended, or revoked.
2. In 1983, respondent Riverport Associates filed an application
with the Corps for a permit to discharge fill material into a wetland
to construct a levee on the bank of the Missouri River in St. Louis
County, Missouri. /1/ The levee was intended to provide flood
protection for a tract of approximately 500 acres. Riverport
Associates proposed to construct a retail, industrial, and commercial
development -- known as Riverport -- on about 370 of those acres.
Pet. App. 22a, 56a. Riverport Associates, after consultation with the
Corps, submitted a proposal that would adversely affect four acres of
wetlands. Id. at 57a-58a, 70a-71a. Riverside Associates also agreed
that it would purchase a ten-acre parcel outside of the levee to
create higher quality wetlands. Id. at 25a-26a.
In April 1985, the Corps published an Environmental Assessment (EA)
concerning the permit application. /2/ Pet. App. 56a-79a. An EA is
used by the Corps in determining whether an Environmental Impact
Statement (EIS) must be prepared under Section 102(2)(C) of the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4332(2)(C). Here, the EA considered, among other things, the
following factors: (1) need for the proposed activity, (2) land-use
classification, (3) flood hazards, (4) food production, (5) fish and
wildlife, (6) endangered species, (7) water quality, (8) air quality,
(9) wetlands, (10) recreation, (11) implications of the Wild and
Scenic Rivers Act, 16 U.S.C. 1271 et seq., (12) public health and
safety, (13) navigation, (14) cultural resources, (15) erosion, (16)
geological resources, (17) energy needs and conservation, (18)
vegetation, (19) water supply, and (20) esthetics. The Corps
concluded that its issuance of a Section 404 permit would "not have a
significant effect on the quality of the human environment" and,
therefore, that "the filing of an environmental impact statement (was)
not required." Pet. App. 79a. The Corps then issued the Section 404
permit to allow construction of the levee. Pet. App. 25a.
3. Several months after the Corps issued the Section 404 permit,
St. Louis County announced plans to construct a domed sports stadium
in Riverport; the County hoped to secure the St. Louis professional
football team as the primary tenant. Pet. App. 4a-6a, 26a. The
County purchased 100 acres within Riverport in December 1985. /3/ Id.
at 26a. The Corps then began an informal process to consider whether,
in light of the stadium proposal, it should modify, suspend, or revoke
the Section 404 permit. Pet. App. 49a. During that process, the
County informed the Corps that no additional wetlands areas would be
filled as a result of the stadium proposal. Id. at 27a, 30a.
Many of the present petitioners then filed an action raising issues
concerning the Corps' issuance of the Section 404 permit and the later
proposal regarding the domed stadium. Missouri Coalition for the
Environment v. Corps of Engineers, No. 86-2229-C(2) (E.D. Mo. filed
June 25, 1986). Because the Corps had not decided whether to modify
or revoke the Section 404 permit in light of the stadium proposal,
however, the district court dismissed without prejudice that portion
of the complaint concerning the stadium. Pet. App. 27a-28a. The
balance of the action, which challenged the legality of the Corps'
decision to issue the permit in the first place, was dismissed with
prejudice as part of a settlement agreement. /4/ Id. at 28a.
On June 22, 1987, following lengthy proceedings, the Corps issued a
Memorandum For Record (MFR) that summarized the agency's reevaluation
decision. Pet. App. 48a-55a. First, the Corps concluded that a new
permit application was not required because "there will be no
placement of fill in wetlands resulting from the construction of the
revised project" (id. at 50a), and the substitution of the stadium for
commercial, retail, and industrial uses within Riverport would not
lead to a significant increase in the scope of the activities
authorized by the existing permit. Second, the Corps stated that the
environmental effects of the stadium proposal "would result in
potentially significant changes in only two of the twenty-eight
environmental impacts addressed in the EA," namely economics and
recreation. Id. at 51a. With regard to those two factors, the Corps
found that the adverse effects "that are felt in some locations are
mitigated to some extent by the beneficial economic and recreation
impacts occurring in other locations." Ibid. The MFR also discussed:
(a) alternative sites for the project, (b) highway access, (c) air
quality, and (d) cumulative effects. Id. at 51a-55a. The Corps
concluded that "the change of environmental impacts due to the revised
project does not warrant modification, suspension or revocation of the
Riverport permit." Id. at 51a. Accordingly, the Corps abided by its
original decision not to prepare an EIS in connection with its
issuance of the Section 404 permit.
4. Petitioners then filed this action in the district court
alleging, among other things, that Section 102(2)(C) of NEPA required
the Corps to prepare an EIS with respect to its reevaluation decision
concerning the stadium proposal. Pet. App. 18a-19a. The district
court, after hearing evidence explaining aspects of the Corps'
decision, ruled: "Upon review of the reevaluation record and other
relevant information here, it is not possible to find (that) the Corps
acted in an arbitrary, capricious, or unreasonable manner in reaching
its reevaluation decision." Id. at 35a. In the alternative, the
district court, relying upon this Court's decision in Heckler v.
Chaney, 470 U.S. 821 (1985), held that the Corps' decisions not to
require a new permit application and not to modify, suspend, or revoke
the original permit were not subject to judicial review. Pet. App.
38a.
5. The court of appeals affirmed. Pet. App. 1a-17a. The court
ruled that the case was not rendered moot by the move of the St. Louis
Cardinals professional football team to Phoenix, Arizona, because the
County was continuing to try to interest a National Football League
franchise to locate at the Riverport site. Id. at 6a-8a. The court
then held that it could base its review of petitioners' claims upon
the entire administrative record before the Corps, not just the MFR.
Id. at 9a.
The court of appeals held that the Corps was not required to
prepare an EIS. The court stated that petitioners had failed to carry
their burden of demonstrating "that there were facts omitted from the
administrative record which, if true, would show that the permitted
project could have a substantial impact on the environment." Pet. App.
12a-13a. Alternatively, the court of appeals "agree(d) with the
district court that a decision not to modify, suspend or revoke a
Section 404 permit is one committed to the Corps' absolute discretion
and, as such, it is not reviewable under the Administrative Procedures
Act, 5 U.S.C. Section 701(a)(1) (and) (2)." Pet. App. 12a n.10.
Judge Fagg dissented. He believed that the case was moot because
the St. Louis Cardinal football team had moved to Phoenix and there
was no indication that any other prospective "anchor tenant" was
interested in the Riverport site. Pet. App. 16a-17a.
ARGUMENT
The court of appeals properly upheld the Corps' decision, and this
case raises no dispositive issue of general importance. Thus, no
further review is warranted.
1. The standard of review governing this case is now settled.
Under the Administrative Procedure Act, 5 U.S.C. 706(2)(A), a
reviewing court may not set aside an agency's decision to forgo
preparation of an EIS unless the agency action is "arbitrary (or)
capricious." Marsh v. Oregon Natural Resources Council, 109 S. Ct.
1851, 1860 (1989). See also Wisconsin v. Weinberger, 745 F.2d 412,
418 (7th Cir. 1984); Webb v. Gorsuch, 699 F.2d 157, 159 (4th Cir.
1983). In applying the "arbitrary or capricious" standard, a court
"must consider whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of
judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971). The court must give appropriate deference to matters
within an agency's expertise. See Baltimore Gas & Elec. Co. v. NRDC,
462 U.S. 87, 103 (1983). And "(a)bsent a showing of arbitrary action,
(courts) must assume that the agencies have exercised this discretion
appropriately." Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976).
Under the "arbitrary or capricious" standard, the courts have a
particularly circumscribed role in reviewing an agency's decision not
to alter its original analysis under NEPA in light of new information.
As the Seventh Circuit observed in Wisconsin v. Weinberger, 745 F.2d
at 418 (emphasis in original):
an agency cannot have acted arbitrarily or capriciously in
deciding not to file a (supplemental EIS) unless the new
information provides a seriously different picture of the
environmental landscape such that another hard look is
necessary.
See also Marsh, 109 S. Ct. at 1865 (Court upheld action where
"Corps conducted a reasoned evaluation of the relevant (new)
information").
2. In this case, the Corps did not act arbitrarily or capriciously
in deciding that St. Louis County's proposal to build a stadium on
Riverport did not require the Corps to withdraw the Section 404 permit
and prepare an EIS. The record shows (Pet. App. 14a), and petitioners
do not dispute, that the Corps considered all of petitioners'
complaints about the environmental effects of the proposed stadium.
The Corps requested a great deal of information from St. Louis County.
Id. at 29a. The Corps received comments from every federal, state,
and local agency with any interest in Riverport. Id. at 4a. And the
Corps reviewed detailed submissions from petitioners, including 22
depositions and thousands of documents. Id. at 29a. The Corps'
decision-making process took more than 16 months, and generated a
66-pound administrative record. Ibid. Indeed, the Corps conducted
the most comprehensive reevaluation in the Corps' Kansas City District
in the last ten years. Id. at 4a.
The Corps carefully considered every possible relevant factor. For
example, the Corps asked the Missouri Highway and Traffic Commission
to review the parking situation; the Commission found that the
proposed plan was adequate. Pet. App. 32a. The Corps consulted with
the Environmental Protection Agency regarding air pollution from
stadium traffic; that agency informed the Corps that the proposal
would not violate federal laws or regulations. Id. at 33a. And the
Corps was careful in ensuring that drainage from the parking lots
would not adversely affect any wetlands. Gov't C.A. Br. 34-35.
The Corps summarized its conclusions in the MFR. The Corps
referred to the EA, which petitioners agree (see Pet. App. 10a)
validly considered the environmental effects of the original Riverport
proposal. The Corps stated: "The revised project would result in
potentially significant changes in only two of the twenty-eight
environmental impacts addressed in the EA. Those impacts are
economics and recreation." Id. at 51a. The Corps then found that
"(t)he adverse economic and recreation impacts that are felt in some
locations are mitigated to some extent by beneficial economic and
recreation(al) impacts occurring in other locations." Ibid.
Accordingly, the Corps adhered to its finding in the EA that the
Section 404 permit "will not have a significant effect on the quality
of the human environment." Pet. App. 79a. Petitioners do not explain
how the district court erred in concluding that "it is not possible to
find (that) the Corps acted in an arbitrary, capricious, or
unreasonable manner in reaching its reevaluation decision." Id. at
35a.
3. Petitioners argue (Pet. 7-18) that the court of appeals erred in
not requiring the Corps to give a reasoned explanation for its
decision. We do not read the court's opinion as expressing that view.
Rather, it appears that the court of appeals understood petitioners'
claim to be that the Corps failed to consider relevant environmental
factors. Accordingly, the court reviewed the record before the Corps
and found that it had considered every significant factor. See Pet.
App. 14a. Contrary to petitioners' suggestion (Pet. 7), the court
never ruled that an agency need not express the reasons why it
concluded not to prepare an EIS. /5/
Nor can there be any doubt that the Corps adequately explained the
rationale for its decision. As we noted above, the Corps prepared an
EA regarding the original permit application when the applicant
proposed to develop the Riverport tract for nonspecific retail,
commercial, and industrial purposes. Petitioners have conceded the
validity of the Corps' original findings and conclusions in the EA.
And when the Corps reevaluated its permit decision, it relied on many
aspects of the original EA, /6/ as well as its conclusions summarized
in the MFR. Petitioners have not explained why any further
explanation was required for a reviewing court to understand the
Corps' reasoning.
Moreover, in light of the Court's recent decision in Marsh v.
Oregon Natural Resources Council, supra, there plainly is no reason to
grant review of the question that petitioners present. The Court in
Marsh decided the proper standard for reviewing an agency's decision
not to issue an EIS -- i.e., whether that decision was arbitrary or
capricious. /7/ And that standard implies that the agency must give a
reason for its decision so that the reviewing court may decide whether
the decision was arbitrary. See Marsh, 109 S. Ct. at 1861; Vermont
Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549 (1978). Thus,
there is now no doubt in the Eighth Circuit or anywhere else that an
agency must explain its decision so that the reviewing court may find
that the agency based its decision "on a reasoned evaluation 'of the
relevant factors.'" 109 S. Ct. at 1861. This case therefore presents
no issue warranting further review. /8/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
ANNE S. ALMY
JEAN A. KINGREY
ROBERT L. KLARQUIST
Attorneys
AUGUST 1989
/1/ The plan called for 800 feet of the levee to be made by the
placement of fill upon wetlands. Pet. App. 57a.
/2/ An "Environmental Assessment" is defined by regulations issued
by the Council on Environmental Quality as a concise public document
prepared by a federal agency to provide "sufficient evidence and
analysis for determining whether to prepare an environmental impact
statement or a finding of no significant impact." 40 C.F.R.
1508.9(a)(1).
/3/ The County also planned to use about 150 acres for additional
stadium parking. Pet. App. 27a.
/4/ In connection with the settlement, Riverside Associates agreed
to create 13 acres of new wetlands. In addition, the non-federal
respondents paid $100,000 to the plaintiffs. Pet. App. 28a.
/5/ The other Eighth Circuit cases that petitioners cite (Pet. 18)
also do not hold that an agency need not explain its decision not to
prepare an EIS. In those cases, the plaintiff was contending that an
agency had neglected to consider some particular aspect of the project
at issue. For example, in Winnebago Tribe v. Ray, 621 F.2d 269, 271,
cert. denied, 449 U.S. 836 (1980), which involved a permit for a power
line over navigable waters, the plaintiff asserted that the agency's
consideration ignored those portions of the power line that did not
cross navigable waters. Similarly, in Olmsted Citizens for a Better
Community v. United States, 793 F.2d 201 (1986), the plaintiffs
alleged that the agency had failed to consider the socioeconomic
impacts of a proposed prison hospital. And in Ringsred v. City of
Duluth, 828 F.2d 1305, 1307 (1987), the plaintiff asserted that "the
Environmental Assessment was deficient in that it failed to consider
the environmental impact of and alternatives to the proposed parking
ramp construction." Accordingly, the court of appeals in those cases
merely responded to the claims raised by the plaintiffs.
/6/ The proposed stadium in Riverport did not call for the filling
of any additional wetlands. Thus, most of the Corps' analysis in the
original EA remained applicable to its consideration of the stadium
proposal. For example, the Corps stated in the EA that the
development of the Riverport tract would take certain agricultural
lands out of production. Pet. App. 62a-64a. That would remain true
whether or not the Riverport lands were devoted to a stadium or any
other development.
/7/ Before Marsh, the Eighth Circuit used the "reasonableness"
standard for reviewing an agency determination that no EIS was
required. See Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083,
1087 (1979).
/8/ In any event, petitioners do not challenge the alternative
holding of the court of appeals -- i.e., that the Corps' decision not
to suspend, modify, or revoke the permit was not subject to judicial
review. Pet. App. 12a n.10.